What Does Trump’s New Travel Ban Mean for the Supreme Court?

The now-on-hold oral arguments on Trump’s travel ban were expected to be a major showdown on questions of immigration, religious discrimination, and Presidential power.

Photograph by Bill Clark / CQ Roll Call via Getty

On Monday afternoon, the Supreme Court issued an order removing oral
arguments in Trump v. Hawaii and Trump v. International Refugee
Assistance Project—the travel-ban cases—from its calendar, until further
notice. The arguments, which had been consolidated, were scheduled to be
heard on October 10th; now both sides have until October 5th to submit
briefs explaining “whether, or to what extent” a proclamation that
President Trump issued on Sunday renders the cases moot. In the
proclamation, which he tweeted out between attacks on football players and praise for Nascar, the President overrode his executive order
keeping people from six mostly Muslim nations (Iran, Libya, Somalia,
Syria, Sudan, and Yemen), and all refugees, out of the country. That
executive order was itself a second try, after a first one that also
included Iraq and applied even to green-card holders who had lived in
America for years was hastily re-written. In this, the third iteration,
there would be a ban on people from eight countries, including five of
those six—Sudan got a pass this time—plus Chad, North Korea, and, in a
limited way, Venezuela, whose government employees would be excluded.
And, while the earlier order was framed as a temporary stop, this is an
indefinite ban. (Refugees would still be kept out under the terms of the
executive order, although that would need to be renewed in a matter of
weeks.) Trump’s lawyers have tried to argue that his previous executive
orders had nothing to do with his campaign promise to institute a
complete and total shutdown of Muslims entering the United States. The
lawyers now appear to be hoping that, with the addition of Venezuela
(which is mostly Christian) and North Korea (in thrall to a cult of
personality), they can make that otherwise laughable assertion more
credible. Trump has so many hatreds; the idea seems to be that, by
consolidating them, you can disguise some of them.

The new order is supposedly based on an objective risk analysis: every
country in the world was asked to meet certain standards for screening
visa applicants, and, according to the Trump Administration, all but
eight countries did. These are not the same eight countries on the list,
though. Iraq did not meet the standards, but the Administration decided
that including it on the banned list was “not warranted.” This likely
has to do with the same factors that got Iraq removed from the first
order: political pressure and the dishonor attached to keeping out
people who had worked for the American military in Iraq, often at
considerable risk. Somalia, meanwhile, did meet the standards, but Trump
decided to keep its people out, anyway. The proclamation says that this
is because Somalia is a haven for terrorists, but then many countries
are. (Pakistan comes to mind.) Its inclusion may have something to do
with the ugly rhetoric that Trump regularly directs at Somali refugees.
Three days before the 2016 Presidential election, Trump appeared at a
rally in Minneapolis, where many of those refugees have settled. He told
the audience members that they could see “first hand” the problem with
the “faulty vetting” of immigrants. “Everybody’s reading about the
disaster taking place in Minnesota,” he said. “You don’t even have the
right to talk about it!”

This idea—that even he, Trump, does not have a right to talk about what
he really wants to do with respect to immigration—has been a running
theme since before the election. In interviews and in
tweets,
he has either confidently said that he can make up some language to get
around constitutional restraints on religious discrimination or else
railed about how “political correctness” has kept him from being as
tough as he’d like to be. He has suggested, in short, that his own
lawyers and executive-order drafters are not being entirely frank about
what he is doing and intends to do. The Supreme Court has, historically,
said that judges should generally defer to the President on questions of
immigration and national security, unless they believe that there is
“bad faith”
involved.
One of the questions that the Justices would have had to deal with in
the oral arguments on the old executive order was how Trump’s gleeful
mendacity tested that deference.

They still ought to ask that question, although the substitution of what
can be seen as a third version of the ban undoubtedly complicates
procedural matters. The now-on-hold oral arguments were expected to be a
major showdown on questions of immigration, religious discrimination,
and the limits of Presidential power. Those questions, especially the
last one, have not been resolved by the new order. Trump says that he
has his reasons for excluding people from his list of eight countries,
and that those reasons are not based in bigotry. But what about the next
eight countries he adds? (He has said that he wants a much broader
travel ban.) And the eight after that? Whom can Trump keep out, and how
real do the fears he cites need to be?

There is another task that the Supreme Court might take on, if not in
these cases then in one related to the proclamation—which is surely on
the way. During one of the oral arguments about the travel-ban case in
the Ninth Circuit Court of Appeals, Judge Richard Paez asked the Trump
Administration’s lawyer, Jeffrey Wall, about whether the arguments he
was making could also have been made with regard to the internment of
Americans of Japanese descent during the Second World War, which the
Supreme Court, to its shame, upheld in Korematsu v. United States. As
the judge pointed out, the executive order at issue in Korematsu did not
explicitly refer to Japanese-Americans, but it was used that way. Wall
replied, “This case is not Korematsu, and if it were I would not be
standing here, and the United States would not be defending it.” That
wasn’t quite an answer—especially since Korematsu, as despised as it is,
has never been formally overturned by the Supreme Court. Indeed, it is
not that much of a stretch to imagine a second Trump Administration, or
another future Administration like it, with a different lineup of
Justices, citing Korematsu to justify the denial of rights to
immigrants, or to any Americans. This country engaged in the mass
detention of members of a minority group, without due process, in living
memory. If the Supreme Court needs a vehicle to overturn Korematsu, it
may be that it has found it in the Trump travel-ban cases. Until the
Court does overturn that decision, the issue will never really be moot.

Amy Davidson Sorkin, a staff writer at The New Yorker, is a regular contributor to Comment for the magazine and writes a Web column in which she covers war, sports, and everything in between.